About Me
“ Craig D. Robins, Esq., has been a practicing Long Island bankruptcy attorney for over twenty-four years ”
Chapter 7 Bankruptcy
Written by Craig D. Robins, Esq.Almost all pensions are protected in bankruptcy proceedings, whether the debtor files here in New York or in any other state
Here’s why: In a 1992 United States Supreme Court case, the court ruled that any pension plan that is “ERISA qualified” is excluded from the bankruptcy estate.
“ERISA” is the Federal Employee Retirement Income Security Act of 1974. Under this act, pension plans, 401-K plans, and other “ERISA-qualified plans” are specifically protected from creditors because of a prohibition from being assigned or alienated.
This means that the pension never even becomes part of the bankruptcy estate. (The bankruptcy estate consists of those assets owned by the debtor which the trustee can go after if the assets are not exempt). When an asset like a pension plan is excluded from the bankruptcy estate, it remains the property of the debtor and the trustee cannot touch it.
Also, since pension plans are not part of the bankruptcy estate, you don’t even have to ascertain whether there is an exemption statute to protect it. It is already protected.
So, simply put, an ERISA-qualified plan cannot be used to satisfy the claims of creditors in a bankruptcy proceeding and should therefore be totally protected.
How can you tell if a pension plan is ERISA-qualified?
Pension plans usually have a pamphlet of information about the plan which contains information about the plan’s tax status. Most employers give a copy of the pamphlet at some point, but if misplaced, additional copies can usually be obtained easily.
The best assurance that a plan is ERISA-qualified is when the plan contains a copy of a favorable ruling letter from the IRS indicating that the IRS has determined that the pension plan is in compliance with the tax code and meets tax qualification requirements. Incidentally, a plan could conceivably be considered tax-qualified even if it has not received a favorable ruling letter from the IRS, and even if it is not in compliance with the tax code, as long as the debtor is not materially responsible for its noncompliance.
One important note: Although the pension plan may be protected, recent contributions, if very large, may not be.
Of course, making sure a pension or retirement account is ERISA-qualified and protected is extremely important. This is one of the many things an experienced bankruptcy attorney should do, and we do this regularly with our Long Island bankruptcy clients.
Written by Craig D. Robins, Esq.Exemption statutes are the laws that enable debtors to keep and protect certain assets. There are set values for most exemptions.
Some of the most important exemption categories can be doubled if a husband and wife file a joint bankruptcy petition in the state of New York.
For example, the homestead exemption in New York is $50,000. If a husband and wife file a joint bankruptcy petition, and they own the house together, they can pool their homestead exemptions for a total of $100,000 of bankruptcy protection.
With jointly-held bank accounts, married debtors filing a joint bankruptcy petition can exempt a total of $5,000, rather than the exemption amount of $2,500 per person.
The exemption for cars, however, cannot be doubled, as the exemption amount is per car, and not per person.
If a Creditor Shows Up at the Meeting of Creditors in Bankruptcy Court, What Questions Can They Ask?
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Written by Craig D. Robins, Esq.I previously wrote that it is highly unlikely that creditors will show up at the meeting of creditors, which is also known as the section 341 hearing. See Will Creditors Show Up For My Hearing In Bankruptcy Court? .
However, in the unusual instance that a creditor does attend, what questions can they ask the debtor?
Creditors are entitled to ask the debtor questions about the debtor’s assets and liabilities. However, they are not permitted to cross-examine the debtor as if the trustee was a judge.
Sometimes creditors will ask improper questions or become argumentative. In such instances, any experienced bankruptcy attorney will direct his or her client not to respond to the question, and will also admonish the creditor as to the proper scope of questioning. The trustee will probably do so as well.
Also, a creditor cannot use the meeting as a fishing expedition to ask the debtor very general questions. Although a creditor has the right to ask numerous relevant questions, there is not enough time to ask many questions at a meeting of creditors, and trustees will not permit it.
If a creditor wants to ask a lot of questions, they must request an additional examination hearing just for them, which is called a “section 2004 exam” because it is done pursuant to a Bankruptcy Rule 2004. Section 2004 exams are extremely rare and occur in less than one percent of all consumer cases.
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In the unlikely event there is a section 2004 exam, it would either be held at the Long Island Bankruptcy Court in Central Islip, or more likely, at the attorney’s office of the creditor or trustee requesting it.
Written by Craig D. Robins, Esq.When any bankruptcy petition is filed, a very powerful federal law is immediately triggered called the automatic bankruptcy stay. The stay prohibits any creditors from taking any action to collect a debt, and this includes those harassing and annoying phone calls from bill collectors.
The very minute your petition is filed, the law says that debt collectors can no longer call you. However, it could take a few days for them to receive notice of the filing, the bankruptcy court mails to them.
If creditors call you after the bankruptcy petition is filed, all you need to do is tell them that you filed for bankruptcy relief and give them the chapter (7 or 13), court location and case number.
With our Long Island bankruptcy clients, once they retain us, we authorize them to tell their creditors that they can verify the retention by calling our office. Most creditors, once they know that a customer has retained bankruptcy counsel, will leave them alone for several weeks. Thus, if you retain our firm, a good amount of the collection calls will stop immediately.
Written by Craig D. Robins, Esq.The meeting of creditors is open to the public and anyone can attend — except one very important person — the bankruptcy judge assigned to the case.
You’d think that the bankruptcy judge might want to know what’s going on in the meeting of creditors, which is the informal hearing conducted by the trustee to examine the debtor. However, bankruptcy judges are barred by law from doing so.
This prohibition didn’t always exist. Our current bankruptcy code went into effect in 1979. Prior to that time, judges were able to attend the meeting of creditors. However, Congress thought it was necessary to prohibit judges from attending the meeting to avoid any bias.
Accordingly, Bankruptcy Code section 341(c) provides that “the court may not preside at, and may not attend, any meeting under this section.”
Although the meeting of creditors is held in the courthouse, it is not a court hearing and the trustee presiding over the meeting is not a judicial officer. Incidentally, in most Chapter 7 consumer cases, the debtor will never even appear before the judge assigned to the case and will never meet their judge.
Written by Craig D. Robins, Esq.A bankruptcy filing immediately stops bill collectors. The entire process typically lasts three and a half months.
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The first part in any bankruptcy case is preparing the petition and filing it with the bankruptcy court.
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Once a client retains us, it usually takes anywhere from a few days to a few weeks to gather the necessary information, prepare the petition, and have it signed, although in emergencies, this can be done in a day. Prior to filing, the debtor must also take a mandatory 30-minute credit counseling session, which can be done by telephone or on-line.
Once we file the petition, which we do electronically (right from our office into the court’s computer), the protections of the bankruptcy stay go into effect, making it illegal for any creditor to contact the debtor.
About one month after filing, there will be a brief meeting in the Bankruptcy Court called the meeting of creditors. This is when the trustee will ask the debtor questions.
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With most of our Long Island bankruptcy clients, attending the meeting of creditors is basically the end of their obligations in the bankruptcy process, although they also have to do a second, thirty-minute credit counseling session, called debtor education, which is also done over the phone or by computer.
In some cases, however, the trustee will request some additional documents to review, such as bank statements, tax returns or deeds.
Creditors technically have 60 days from the date of the meeting of creditors to file objections to discharge. This is very rare and occurs in far less than one percent of all cases filed. The date which is 60 days after the meeting of creditors is called the “bar date” because creditors are barred from filing any objections after that time.
Once the bar date passes, and assuming the debtor has taken the debtor education course (we have to file a certificate with the court indicating that), then the bankruptcy court clerk’s office will process the final paperwork and issue the order of discharge and close the case.
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In most instances, this usually occurs about three and a half months after the date the bankruptcy petition was filed. At that point, all dischargeable debt (such as credit card debt) has been forever eliminated and the debtor is on his or her way to enjoying their fresh, new financial start.
Written by Craig D. Robins, Esq.The bankruptcy laws and exemption statutes permit debtors to keep and protect various specified assets in Chapter 7 bankruptcy cases. See Bankruptcy Exemptions in New York .
When an asset is either non-exempt, or greater than the exemption amount, the bankruptcy trustee has the right to liquidate the asset to raise money for the benefit of creditors.
Fortunately for debtors, however, even if an asset is non-exempt or has a value greater than the exemption amount, the debtor may be able to keep it anyway.
Here’s why: If an asset has relatively low value or is hard to sell, the trustee will probably abandon it. In order for a trustee to want to liquidate an asset, there has to be enough net funds to make a reasonable distribution to creditors. If there isn’t, the trustee will walk away.
Also, trustees don’t work for free. Their compensation for liquidating assets comes out of the gross proceeds that they collect. Thus, if a sale will not produce enough to pay the trustee, an auctioneer, and then leave a sufficient net proceeds, the trustee will not bother.
There is no magic amount that trustees will walk away from, but most New York Chapter 7 bankruptcy trustees will not bother to administer any assets that will produce less than a thousand dollars, sometimes even more.
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I recently wrote a post about the additional pressures trustees face in deciding whether to liquidate assets: The Back-Door Politics Behind Trustees Pursuing Non-Exempt Assets .
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Experienced bankruptcy attorneys can do a pretty good job gauging the likelihood of whether a trustee will want to liquidate a non-exempt asset.
Written by Craig D. Robins, Esq..
Every consumer debtor who files for bankruptcy, be it Chapter 7 or Chapter 13, will be examined by the trustee at a hearing called the meeting of creditors. Also known as the section 341 hearing, it is held at the bankruptcy court about a month after the bankruptcy petition is filed.
If you live on Long Island, your hearing will be at the Central Islip Bankruptcy Court. If you live in Brooklyn or Queens, your hearing will be at the Brooklyn Bankruptcy Court.
During the examination, which frequently lasts just a matter of minutes, the trustee will question the debtor in the presence of their attorney. The trustee will ask questions about the debtor’s assets and liabilities, and the reasons why the debtor sought bankruptcy relief.
One key issue for debtors is: How much should you talk, in response to the trustee’s question?
The simple answer is: As little as possible.
Many of the questions the trustee will ask require a simple “yes” or “no” answer, and that’s all you should respond with: “yes” or “no”. Providing any additional information can only get you into trouble by opening up a can of worms that could lead to the trustee to ask even more questions.
If the trustee asks a question that requires that you explain something, you should do so accurately and honestly, but also as simply as possible.
I have seen many debtors, who, being a little nervous, say far too much, and provide additional information that the trustee did not ask for. Remember, only answer the trustee’s question and do not volunteer any other information. As long as you answer the question truthfully, then you’re O.K.
The only exception is if you have a very compelling reason as to why you fell into debt, such as being unable to work because of a serious illness. In such instances, you should talk about your compelling medical issues as much as possible.
Incidentally, assuming you have an experienced bankruptcy attorney who has prepared you for the meeting of creditors as we do, you should not be surprised by the trustee’s questions, as your attorney will have already reviewed them with you.
Written by Craig D. Robins, Esq..
Although a bankruptcy filing is often the best solution to an unmanageable debt problem, some consumers should not to avail themselves of Chapter 7 bankruptcy relief.
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Here are five types of situations where Chapter 7 bankruptcy may not be a realistic option:
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Too Many Unprotected Assets. When filing for bankruptcy, you can keep and protect certain assets. Some consumers have a significant amount of non-exempt assets that could be forfeited to a bankruptcy trustee. See: Bankruptcy Exemptions in New York .
Too Much Income. In order to be eligible to file for Chapter 7 bankruptcy, a consumer must pass the means test. Having a family income that is very high can preclude Chapter 7 eligibility. See: The Means Test is Often the Key to a Successful Chapter 7 Bankruptcy Case .
Transferring Assets to Family Members. If you give away a valuable asset to a family member, then under certain circumstances the bankruptcy trustee can pursue the relative to try to get the value of the asset back. See: Why Consumer Debtors Can’t Transfer Assets Like a House or Car Before Filing Bankruptcy on Long Island .
Most Debt is Non-dischargeable. Some debts cannot be eliminated in bankruptcy. They include most income taxes, student loans, and matrimonial obligations. A chapter 7 filing will not solve these types of debt problems. See Student Loans and Bankruptcy and Matrimonial Fundamentals Under the New Bankruptcy Laws .
Recent Payments Were Made to Family Members. If you borrowed money from family members and paid them back just prior to filing, you should not file for bankruptcy for a period of time. Such payments are known as preferential payments, and if made in the one-year period prior to filing, can be set aside.
Even if Chapter 7 is not a possible solution under one of these scenarios, there are still other ways to manage debt. Some alternatives include Chapter 13 bankruptcy and negotiating settlements with creditors. Meeting with an experienced Long Island bankruptcy attorney will help you ascertain whether a bankruptcy filing is for you.
Written by Craig D. Robins, Esq..
For lack of a better term, I often have “repeat customers” coming back to see me at my Long Island bankruptcy law offices. It is unfortunate, but consumers who have totally eliminated all of their debts in a bankruptcy filing years ago can sometimes find themselves in debt again — especially in these difficult economic times.
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The other possibility is that they liked bankruptcy so much the first time around, they want to do it again.
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“Can I File Bankruptcy Again?”
This is the question I get from every one of these clients. Fortunately, the answer is YES! However, when the bankruptcy laws were changed in 2005, various waiting periods were imposed. In every case, you can file bankruptcy again; it’s just a question of how long you have to wait.
Four Important Notes About Filing a Second Bankruptcy Case
The first important note you need to know is that the waiting period starts from the date you filed your prior bankruptcy petition and ends on the date you filed your second bankruptcy petition.
The second important note is that you only have to wait if you received a discharge in your prior case. If you did not receive a discharge, you can file immediately. For example, if you filed a Chapter 13 bankruptcy case, and it was dismissed because you were unable to make payments, you do not have to wait at all to re-file a second case (provided, of course, that you meet other necessary criteria — speak to an attorney about this).
The third important note is if your prior case was a Chapter 13 bankruptcy case in which you paid back your unsecured creditors at least 70%, then you do not have to wait at all.
The final important note is that the waiting period does not prevent you from filing again; it just prevents you from getting a discharge. You can still file without waiting — you just do not get the benefit of the discharge. Why would you do this? If the sole purpose of re-filing is to stop foreclosure, you probably do not need to wait several years, as you still get the benefit of the bankruptcy stay in a Chapter 13 case as well as the ability to cure arrears with a payment plan.
The Waiting Periods Are 2, 4, 6 and 8 Years
Two Years
If your prior case was a Chapter 13 bankruptcy case and your new case will be Chapter 13, then the waiting period is only two years.
Four Years
If your prior case was a Chapter 7 bankruptcy case and your new case will be Chapter 13, then the waiting period is four years.
Six Years
If your prior case was a Chapter 13 bankruptcy case and your new case will be Chapter 7, then the waiting period is six years.
Eight Years
If your prior case was a Chapter 7 bankruptcy case and your new case will be Chapter 7, then the waiting period is eight years.
Important Note for homeowners in foreclosure: Even if you do not qualify to file again based on the above criteria, you can still file for Chapter 13 if the primary concern is curing mortgage arrears. In this instance, you will not receive a Chapter 13 discharge, but you will be able to cure all of your mortgage arrears and stop foreclosure.
The Above Waiting Periods Can be Tricky, So Get Good Bankruptcy Advice
Since the new bankruptcy laws made repeat filings somewhat complicated, it makes sense to meet with an experienced bankruptcy attorney who can give you the appropriate advice about filing a second bankruptcy.
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These Waiting Periods to Re-File Bankruptcy Apply In Every State
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A number of my blog readers located outside of New York have asked if these guidelines apply in their home state. They do. The waiting periods are the same no matter what state you file in.
For more info about repeat filings, see my full-length post that was published in the Suffolk Lawyer – Consumer Bankruptcy Debtors Face New Limitations for Repeat Filings . That post also contains info about specific issues concerning multiple filings in Chapter 13 cases.